Kash Patel’s $250 million defamation suit against The Atlantic is, to put it mildly, a long shot. The article painted a portrait of an FBI director who engaged in excessive drinking and relatively minimal work. Patel’s suit says it aims to hold the publication “accountable for a sweeping, malicious, and defamatory hit piece,” alleging the journalists’ “crossed the legal line by publishing an article replete with false and obviously fabricated allegations designed to destroy Director Patel’s reputation.” The Atlantic said it stands by its reporting, calling the suit “meritless.”
Patel’s only chance to win on this claim is to prove the alleged defamatory statements were false, that they harmed his reputation and, because Patel is a public figure, that they were made with “actual malice.” Proving actual malice requires evidence that Atlantic journalists knew they published false statements about Patel or acted in reckless disregard of whether the statements were true or false. This is a high standard requiring much more than negligence, which demands only that the outlet’s editors and reporters should have known that certain statements were false.
Why do we demand that public figures prove actual malice while private figures only need to show negligence? Three words: the First Amendment.
Back in 1964, a unanimous Supreme Court held in New York Times Co. v. Sullivan that public officials suing for defamation must satisfy this more exacting standard, because anything less would infringe on our speech rights. (Three years later, the Supreme Court extended this standard to include public figures). Public figures are generally people of public concern. There is a legitimate interest in talking about them — and that discussion should be encouraged. If something false is said about public figures, most of them have access to a microphone and can try to correct the record.
Why is it so important to allow people to talk about, and in fact criticize, public officials like Patel? Justice William Joseph Brennan Jr. gave us the answer when he wrote the opinion for that landmark 1964 decision. He held that while the country could “live in peace without [defamation] suits based on public discussions of public affairs and public officials,” he doubted “a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.”
Simply put, unless Patel can climb the mountain of showing actual malice, he is less likely to win this lawsuit than he is to be on the next space flight.
But Patel’s suit will still have real, negative consequences for The Atlantic, and perhaps media outlets in general. Even a legally weak defamation suit can impose real costs on a media defendant.
Unless Patel can climb the mountain of showing actual malice, he is less likely to win this lawsuit than he is to be on the next space flight.
First, it costs money to defend against defamation suits, even ones destined to fail. The Atlantic is a relatively wealthy media outlet, majority-owned by a company controlled by Laurene Powell Jobs, boasting over 1 million subscribers. The Atlantic can afford to hire and retain high quality lawyers who will try to kill this suit in its infancy. Not every media outlet has that ability, far from it.
Second, it costs time to fight a defamation suit, even if a judge tosses it out fairly early in the process. Reporters, editors and publishers have to divert time away from gathering and publishing the news and toward defending against litigation. They may have a “hold” placed on their digital communications — emails, texts, etc. — meaning they are legally prohibited from deleting these messages, which may end up exposed in the discovery process. Employees likely have to collect, review and perhaps produce documents related to their reporting on Patel to demonstrate they did not act with actual malice. Once again, this may be easier for The Atlantic than it would be for an outlet working on a shoestring budget with few employees.
Third, money plus time may equal self-censorship. Faced with the prospect of defending against a defamation suit, some media outlets may think twice before publishing information that puts public officials, particularly litigious ones like Patel, in an unfavorable light. Unfortunately, those are the moments when we need a robust press most.
More than anything, the First Amendment protects our ability to criticize our government. Patel is a high ranking member of our government, and with that power comes scrutiny.
A representative government only works if we know what our representatives, and those appointed by them, are doing. We cannot hold members of our government to account if we don’t know what actions they are, or are not, taking. If members of the media, and their employers, feel anxious about shining a light on government officials, then our representative system of government may collapse under the darkness. Defamation law recognizes this, and makes it hard for those who hold a special position of power in our country to successfully sue members of the press.
Robust anti-SLAPP (strategic lawsuits against public participation) laws can make a difference here. These laws allow people and groups sued for defamation to ask a court to trash suits that target protected speech, and, importantly, to recover attorney’s fees. At this point, anti-SLAPP statutes are creatures of state law, and they vary from state to state. A federal anti-SLAPP statute would conclusively establish that anti-SLAPP laws apply in federal court and give a level of protection for media outlets and others faced with questionable defamation suits related to public figures.
In sum, defamation suits exist for a reason. Public figures should be able to vindicate their rights when others make false statements about them with actual malice. But public figures should not use defamation suits as a sword against reasonable criticism. Doing so will harm not just the members of the media, but all of us who rely on them to inform us.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist.